While most entrepreneurs don't want to think about divorce, we suggest the following advice: "Face the possibility of divorce from the first day you start your business or professional practice. After all, only half of all marriages survive! New York, New Jersey and Florida are all equitable distribution states, which means that your spouse may receive a substantial portion of the value of your business or professional practice.
Hire a matrimonial attorney who has years of experience dealing with divorces involving substantial businesses and professional practices: Our firm has 35 years of experience representing clients who own successful businesses and professional practices. We have represented business owners involving businesses worth as much as $25 million dollars, and all types of medical, dental and podiatric practices, including Urology practices, Radiology practices, Internal Medicine practices, Orthopedic practiices, Chiropractic practices, Podiatry practies, Dental practices, Physical Therapist practices, etc. We are also well-versed in the problems of maintaining patient confidentiality in litigated divorce cases.
Safeguard your assets: It's crucial that you take steps to guard your assets, starting the day you put the key in the door.
First, draft a legal buy-sell agreement. Such agreements outline the terms and conditions under which one partner will agree to sell back part of the business. While these tools are used extensively for estate-planning purposes, they can also serve as a defensive tool in case of divorce.
If you operate a partnership, you can include a provision in your partnership agreement called a restriction of transfer, which states that there can be no transfer of ownership without the partners' approval. In this way, if the court orders a transfer of ownership to your spouse, your partners will bail you out and you won't lose all your interest in the business.
Create a good-will pact: A prenuptial or post-nuptial agreement is an important weapon in spousal warfare. This agreement, which can be drawn up by our firm either before or during the marriage, can be as broad as the parties wish. It can spell out how business assets should be divided up, overriding community property laws. And it can be used to ensure that the laws of the state where the couple were married will govern in the event of a divorce, no matter where they reside at the time of the breakup. While such documents are common in Hollywood, only 20% of the owners of family-operated businesses have them, according to consulting firm Arthur Andersen. The law for pre-nuptial and post-nuptial agreements varies by state, and they must meet basic standards to hold up in court. Judges want to make sure each party completely discloses the value of his or her personal assets, liabilities and sources of income. They also want the agreement to be fair and not impoverish either party.
Avoid common mistakes: The last thing you want to have to do is sell your business or professional practice in order to settle the score with your disgruntled spouse! So keep a line of credit at hand to cover 6 to 10 months of business operating expenses to keep your business from becoming cash-strapped during the proceedings. The cash should also come in handy when it's time to pay Uncle Sam. Although transfers of money or assets in a divorce settlement are not generally taxable if "incidental to a divorce", you may be hit with capital-gains taxes if you sell the stock you receive.
Also be sure to hire a professional business valuation expert to value your business. Sometimes it is preferable for our law firm to retain the business appraiser so that the appraiser's report may be considered "Attorney Work Product", and in other cases, we recommend that both spouses agree to the appointment of a neutral appraiser by the Court. Our law firm maintains a professional relationship with many experienced business appraisers, real estate appraisers, CPAs, etc.
And think carefully about your compensation scheme: If you don't pay yourself a fair wage and instead plow everything back into the business, your spouse might claim that he or she is entitled to more money because you kept pumping money back into the business that should have gone to the household!
Control the damage: Even if you find yourself facing divorce without a plan, you can still avert disaster. One smart strategy is to use a promissory note to buy out a spouse's interest in a business. As its name implies, it is a promise to make future payments, and it specifies the amount needed to equalize a divorce settlement. The IOU allows an entrepreneur to pay the spouse on an installment plan and deduct all interest payments as long as he or she continues to run the business.
Above all, do not lose track of the proprietary information you release during the divorce proceedings. We recommend that you keep a trail of any sensitive documents like tax returns and contracts that you give your spouse and his or her lawyers. Get a protective order from the court that prohibits them from disclosing proprietary information like client or supplier lists." This is important because a vengeful spouse can fork over trade secrets to your competitor and destroy you!
Keep in mind, the love song can quickly turn into a battle cry!